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late court, while not necessarily refusing to entertain an appeal founded on irregularity in practice22 not involving the merits, if there has been no attempt to correct it first, by motion, may correct the irregularity upon the appeal, but give costs against the appellant. 23

In cases on the line between these two classes, where there is resulting doubt as to the proper remedy, it is not unusual to move first, and if the motion is denied then to appeal both from the original decision and the order denying the motion.

11.- statutory "finaldecision.] — A statute declaring that a decision of a specified tribunal shall be “ final and conclusive," is, in the absence of anything to indicate a contrary intent, construed as referring to the merits and particularly questions of fact, but not as forbidding a motion to vacate for irregularity, mistake or fraud.24

12. In what cases to move rather than bring new action.]— If the progress of the action is apparently barred by a stipulation, release, or discharge, or other such obstacle which is void or voidable, or if final judgment has been obtained by fraud, or is unconscionably enforced, or if an officer of the court, such

: a referee, receiver, sheriff, etc., fails to comply with any mandate of the court affecting his duty in relation to any step in the progress of the cause, or fails to pay over funds in his hands to the party in the action who has become entitled to them, the court have power to grant relief upon motion, and in so doing may go even to the extent of setting aside releases and over

22 Compare Derham v. Lee, 47 N. Y. Super. Ct. 174 (where the court said: “ Questions of regularity and practice should be raised by motion. No question of irregularity can be heard on appeal for the first time.”)

23 For instances, see Loy v. Met. El. Ry. Co. 15 App. Div. 1; Levy v. La Fountain, 81 App. Div. 636, 80 N. Y. Supp. 468.

24 Matter of Prospect Park & Coney Island R. R. Co., etc. 85 N. Y. 489. (The court, dismissing an appeal, said: “ The report of the commissioners, as to the amount of damages, was of itself final and conclusive. If the land owners, in such a case, claim that there was any irregularity, fraud, or mig. take in the proceedings of the commissioners, or back of such proceedings, their remedy is by motion to set the award and proceedings aside, and not by appeal from the award or the order confirming the same; and, from orders made upon such motions, appeals may be had, even to this court, if they involved substantial rights, and do not rest in discretion.”) See also Matter of Mayor, etc., of N. Y. 49 N. Y. 150; Matter of N. Y. Central, etc., R. R. Co. 64 N. Y. 60; Matter of De Camp, 151 N. Y. 557.

turning deeds and judgments, without the aid of a jury,25 if the proper parties are before it.

So if a judgment has been fraudulently obtained or is being fraudulently enforced, a new action is usually maintainable for relief; but if the grievance is irregularity,26 or if (the proceedings being regular, and free from fraud 27) the question of relief from it rests in the existence of a defense or equities appealing to the discretion and favor of the court,28 the remedy is by motion, even though the person seeking the relief be not a party to the action.29

In cases of moment and difficulty the court may in its discretion refuse relief on motion, and leave the applicant to bring an action for the same relief.30 The main reasons for this latter

25 Ferris v. Crawford, 2 Den. 593, 604; Becker v. Lamont, 13 How. Pr. 23 (stipulation executed under mistake of law and fact, as it in effect barred a defense relied on-set aside on motion).

Seaver v. Moore, 1 Hun, 305 (where a stipulation, corruptly made by plaintiff's attorney, vacating an order of arrest, was set aside on motion made by plaintiff's substituted attorney).

Howell +. Mills, 53 N. Y. 322 (sale set aside for collusion, on motion of an infant entitled to the protection of the court).

Weseman v. Wingrove, 85 N. Y. 353 (where a motion is held to be the proper remedy to compel a referee to pay a lien which the judgment in partition suit had directed him to pay).

Artisans' Bank 1. Treadwell, 34 Barb. 553 (motion to compel a sheriff to pay over money denied, but the remedy approved of as correct in a proper case).

In Romain v. Garth, 5 Sup. Ct. (T. & C.) 361, this practice was said to be anomalous, and the motion denied; but plaintiff was given leave to ament by nleading the alleged release by way of anticipating and averring fraud in obtaining it.

There is a line of well-considered authorities to the effect that a plaintil may, if he choose, without pleading in avoidance of an anticipated defense give evidence in avoidance on the trial. NOTE in 10 Abb. N. C. 317, an cases cited.

26 Gould v. Mortimer, 16 Abb. Pr. 448, 26 How. Pr. 167.
27 Vandercook v. Cohoes Savings Inst., 5 Hun, 641.
28 McCotter v. Jay, 30 N. Y. 80.
29 Smith 1. Am. Life Ins., etc., Co., Clarke's Ch. 307.

30 McLean v. Tompkins, 18 Abb. Pr. 24; New York El. Ry, Co. v. Ma hattan Ry. Co., 63 How. Pr. 14 (where a motion was denied on the grou among others, that it involved difficult questions of law and contest questions of fact, involving vast interests which the court refused to co sider on motion, but left the party without prejudice to pursue his reme by action). S. P., Mut. Life Ins. Co. v. O'Donnell, 146 N. Y. 275.

National Bank of Oswego v. Dun, 29 Hun, 529, 531 (where the court marks that questions relating to an attack upon the validity of an assignm for the benefit of creditors are “ more proper for the solemn mode of in tigation found in a trial rather than in the summary modes which attend ordinary special term motions”).

People v. Erie Railway Co., 54 How. Pr, 59 (where a motion to comp receiver to comply with the terms of a lease was denied because the quest that rights should be settled in an action, than on motion”).

course are presented when either (1) the relief is not truly incidental to the existing action, or (2) the necessary parties are not already before the court,31 or (3) where the papers presented on the motion raise a serious conflict of evidence on which the party moved against ought to have opportunity of trial, with examination of witnesses, 32 etc.

Hence, when relief is needed which is in a proper sense incidental to the pending action, and the necessary parties are before the court, it is usually prudent to apply by motion, lest a fresh action brought without having thus applied should be dismissed, or the costs of it be charged on plaintiff, for suing when he might have had relief on motion.33 But any such

Phillips v. Wicks, 38 N. Y. Super. Ct. 74 (motion to enforce an oral agree. ment between attorneys as to a discharge of a judgment, denied, because such matters are “ too grave questions to be disposed of upon a mere motion," and in this case no action on an oral agreement would be of avail).

31 Rhodes v. Dutcher, 6 Hun, 453 (motion to set aside mortgages denied because all the parties were not before the court, and because “a special motion is but illy adapted to this end when facts are disputed and the equities are complicated”). s. P., Bates v. Harding, 17 App. Div. 606, 45 N. Y. Supp. 396.

Marvin 1. Marvin, 1 Abb. N. C. 372 (motion for relief by a party to an intricate partition suit where there had been a failure of the common title as to the part allotted to the moving party denied, and the applicant left to a new action in the nature of a bill of review).

Maher v. Garry, 87 Hun, 315, 34 N. Y. Supp. 363 (injunction order continued pending trial where to decide the question upon which its continuance depended laid at the foundation of the action, and its continuance simply preserved the status quo.

For further illustration of this principle in a question of set-off, see Swift 0. Prouty, 64 N. Y. 545, where the moving party was turned over to his action, in which, however, he did not succeed. Prouty v. Swift, 10 Hun, 232.

32 Hill v. Hermans, 59 N. Y. 396 (motion to dismiss an appeal founded on a stipulation to dismiss was opposed on the ground that the stipulation had been obtained by undue influence, and the evidence being conflicting, proceedings on the appeal were ordered stayed to enable an action to be brought to set aside the stipulation, for the court laid down the rule that where material questions of fact arise in reference to which the evidence is conflicting, a party seeking relief should be left to an action, provided it can be obtained in that form, rather than to determine the question on motion and ex parte affidavits). See also Mut. Life Ins, Co. v. O'Donnell, 146 N. Y. 275.

Churchill v. Loeser, 89 Hun, 613, 35 N. Y. Supp. 310 (question whether plaintiff is estopped by an account stated will not be determined on motion).

33 But where the relief sought is to set aside a sale, judgment decree, or award, etc., on the ground that it was obtained by fraud, there is a concur. rent, and, in case of difficulty, a better remedy by an action, and the injured person is not limited to the remedy by motion, except perhaps in cases of foreclosure sales, "where it has been held that there is a full, adequate, and complete remedy by a motion.” See Hackley v. Draper, 60 N. Y. 88 (where, reviewing the authorities, the court held that a creditor could properly maintain this action to set aside a fraudulent sale made by a receiver, although

36

motion, if for relief that might be had by action, is subject to the possibility of being denied on account of conflict raised by counter affidavits. 34

Difficult questions of fact arising on motion may be referred to a referee pending the motion, though it will not be done except in extraordinary cases.

In the application of these principles to the case of a discharge in bankruptcy, the result of the authorities is that a discharge will be ground for a stay 37 on motion when there has been no opportunity to plead it; but if the validity of the discharge is questioned, it should not be tried on affidavits, but an issue should be made for trial, either by allowing a supplemental pleading, or a new trial.

13. In what cases to move rather than plead.— Want of jurisdiction.] - Where undisputed facts show that the court has no jurisdiction, the objection may be raised by motion to dismiss, although demurrer or answer is a concurrent remedy; for a court is not bound to encumber its calendar with business beyond its cognizance; but if a jurisdictional objection depends on allegations of fact to be substantiated, it should be taken by pleading, and not be tried on affidavits.38

14. – – want of authority to sue.] — The objection that the person named as plaintiff had not authorized any action,39 or

" the special term had authority no doubt to hear a motion for the purpose indicated, and could have vacated the sale made by the receiver, although it is not so clear that the equitable rights of the parties could have been so well protected and disposed of in this form (motion) as could be done in an action brought especially for that purpose ”).

34 See cases under note 30 on p. 78, and note 32 on p. 79 of this volume. 35 N. Y. Code Civ. Pro., &$ 827, 1015; Riley v. Brown, 14 Abb. Pr. (N. S.) 290, n.; and 19 How. Pr. 140.

36 See Martin v. Hodges, 45 Hun, 38; Matter of Henlein, 65 App. Div. 159.

37 Monroe v. Upton, 50 N. Y. 593; also under N. Y. Code Civ. Pro., $ 1268, for cancellation of judgment.

38 Atl. & Pac. Tel. Co. v. B. & 0. R. R. Co., 87 N. Y. 355; Werthim v. Page, 10 Wkly. Dig. 26; Robinson v. Oceanic SS. Co., 112 N. Y. 315; Mabon 1. Ongley Elec. Co., 24 App. Div. 50, 48 N. Y. Supp. 973.

39 Comm. of Excise v. Purdy, 13 Abb. Pr. 434, 36 Barb. 266. According to Mix 1. People, 116 11. 265, 4 N. E. Rep. 783, it must be so taken. So, too, a motion is the proper remedy of the defendant where an action is brought or continued against him in violation of a stipulation staying proceedings. Farr v. James, 11 Wkly. Dig. 497. Otherwise of the objection that another person was the real party in interest, raised by a motion to compel his substitution in place of the plaintiff. Horton v. Shepherd, 1 Civ. Pro. R. (McCarty), 26.

had not obtained leave of court to bring it, where leave is necessary,' and the objection that an infant has appeared without guardian ad litem,41 may be taken by motion to set aside the proceedings, for these objections are not usually within the issues.

15. objections to pleadings.] — It will be seen hereafter that in general, objections to the form and formal requisites of pleadings must be raised by motion, 42 and that objections to the substantial sufficiency of the matter averred or intended to be averred, must usually be taken by demurrer or at the trial.

16. When motion not proper to determine an issue.] — When a material issue of fact has already been properly raised by the pleadings it is not in general proper to attempt to obtain an adjudication thereupon by a summary motion, for it would often violate the right of trial by jury, and a motion is not the proper procedure when the cause requires a judgment upon an issue of fact or law appropriate for judicial trial.43 But this rule does not apply to motions which attack the propriety of the issue itself, or object to the jurisdiction of the court on undisputed facts, for the court is not bound to hold a cause for trial if as matter of law it has no jurisdiction, or if the apparent issue is only immaterial or fictitious. Therefore if an answer expressly or in legal effect constitutes no defense, it is frivolous, and a motion for judgment on the pleadings is proper;44 if it is clearly sham, a motion to strike it out and for judgment as for want of an answer is allowed ; 45 and if the court has no jurisdiction

40 Mayor, etc. v. Brett, 2 Hilt. 560; Harris v. Hardy, 3 Hill, 393; Finch t. Carpenter, 5 Abb. Pr. 225; Higgins v. Allen, 6 How. Pr. 30. The motion should not be granted, except in a clear case. U. S. Life Ins. Co. v. Gage, 26 Abb. N. C. 16, 13 N. Y. Supp. 837.

41 Freyberg v. Pelerin, 24 How. Pr. 202; the motion will not lie after answer (Parks v. Parks, 19 Abb. Pr. 161), and at the trial the irregularity may be cured by an order appointing a guardian nunc pro tunc. Rima v. Rossie Iron Works, 120 N. Y. 433.

42 Marie v. Garrison, 83 N. Y. 14; Sage v. Culver, 147 id. 241. 43 John Church Co. v. Parkinson, 86 App. Div. 163, 83 N. Y. Supp. 175; Dietz v. Dietz, 2 Hun, 339 (where an issue in divorce had been raised by defendant's pleading a former adjudication showing plaintiff guilty of adul. tery; and defendant's motion for a stay of this action was denied).

14 N. Y. Code Civ. Pro., $ 537; Kelley v. Kriess, 68 Cal. 210, 9 Pac. Rep. 129.

45 N. Y. Code Civ. Pro., & 538. But a proper denial may not be so stricken out. Wayland v. Tysen,, 45 N. Y. 281.

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